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Reforms urged to prevent mistakes

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Justice in Question

When innocent people go to prison, the entire criminal justice system can be thrown under a microscope as advocates, attorneys, judges, and legislators attempt to figure out what went wrong.

Reactions are mixed about how Indiana rates overall in preventing and analyzing those wrongful convictions, and national advocates for wrongful-conviction reforms say Indiana is slightly behind when compared to other states that have implemented reforms in the past decade. But hope can be found as they examine the state’s efforts to strengthen the system and try to prevent these criminal justice mistakes from happening in the first place.

systematic changes

“Indiana appears to be interested in ways to enhance the accuracy of criminal investigations, strengthen prosecutions, and better ensure both justice and public safety,” said Stephen Saloom, an attor ney and policy director for the New York-based non-profit Innocence Project, which studies these issues and advocates for reform nationally. “That’s the positive that we need to look at.”

Of the causes that most often contribute to wrongful convictions eyewitness misidentifications, invalidated or improper forensic science, false confessions or admissions, and bad information from informants or snitches. Indiana has implemented only one of the five key reforms believed to help address those issues.

Nationally, 31 states have enacted DNA preservation statutes while all but Alaska and Oklahoma have adopted automatic DNA testing laws, according to the Innocence Project. Sixteen states have implemented a policy about recording police interrogations, seven states have put eyewitness identification reform policies in place, and eight have established “innocence” commissions to study broad-based criminal justice reforms in these areas.

While Indiana has established a statewide public defender agency to help on cases, and defendants are able to obtain post-conviction hearings that other states sometimes don’t offer, Indiana has adopted only one of those national reforms: an automatic DNA-testing statute, Indiana Code 35-38-7, has been in effect since July 2001.

Discussion has been ongoing about whether Indiana should have a DNA preservation statute, but the Indiana Supreme Court says nothing official is currently being considered on that topic. The court is, however, exploring whether custodial police interrogations should be recorded. 

UPDATE: The Indiana Supreme Court issued an order Sept. 15, 2009, adding a new Rule of Evidence requiring that statements obtained during police interrogations must be recorded before they can be entered into evidence in felony cases. Click here to read more.


More than 300 public comments were submitted to the state court’s Committee on Rules of Practice and Procedure during a public comment period that ended

April 30. The court is deciding whether it should adopt a rule requiring that police custodial interrogations in criminal investigations should be recorded and what form that might take. Two prototypes outline possibilities for Indiana Rule 26 of Criminal Procedure on Electronic Recordation, or Indiana Rule of Evidence 1009.

During the last legislative session, Rep. Linda Lawson, D-Hammond, and Sen. Karen Tallian, D-Portage, both pitched the idea, but their bills didn’t make it out of committee. Fiscal impact statements said the Indiana State Police record about half of them already; a law could mean spending to start the process if it’s not already done, but savings could be found in time and costs of pretrial or trial hearings about what happened during a custodial interrogation.

Floyd County Prosecutor Keith Henderson, who is chairman of the ethics committee of the Indiana Prosecuting Attorneys Council, said the requirement would undermine police officers’ work and also jurors’ ability to determine the truth. His comments echo several others submitted by prosecuting attorneys throughout the state.

SaloomOn the other hand, Terre Haute defense attorney Jessie Cook argues that the recording should be required because it’s consistent with what other states are doing and it can directly impact a potential wrongful conviction.

“Electronic recording of custodial interrogations minimizes the risk of false confessions and convictions of the innocent, while providing powerful evidence to help convict the guilty,” she commented to the court.

The rules committee is currently considering the issue, and there isn’t a timeline as to when any action must occur. Whatever happens on that reform, though, advocates say they are encouraged the state’s criminal justice system officials are talking about the issues that often result in wrongful convictions.

“We all have to start somewhere, and it’s good that Indiana is having those discussions,” said Marla Sandys, an associate criminal justice professor at I.U. Maurer School of Law - Bloomington, who also sits on a wrongful conviction advisory board in Indianapolis. “Everyone is on the same side (because) no one wants to see innocent people convicted. The question becomes how do we make sure that best happens. That’s the struggle and obstacle, and there are no easy answers.”

Rep. Ralph Foley, R-Martinsville, who sits on the House Judiciary and Courts and Criminal Code committees, said he is also concerned about these issues and doesn’t have a problem with recording police interrogations or other issues that could better help prevent wrongful convictions.

“Wrongful convictions seem to be the unusual exception, and there’s probably more on the other side than those involving wrongful convictions,” he said. “But I came up on the law-and-order side of the system. So it bothers me that we review these in a courtroom laboratory when there may not have been proper training at the front end.”

When asked about the rate of wrongful convictions nationally and how the state focuses on that at the appellate level, Indiana Attorney General Greg Zoeller referred to the high rate of criminal convictions that are affirmed. Zoeller said his office closely follows any legislative or court efforts to more sharply hone the use of forensic evidence in criminal trials. He also works closely with county prosecutors to ensure the system’s fair to both the accused and victims.

“Maintaining public support for the criminal justice system is part of my role as attorney general,” he said. “Our office’s duty is to defend the legal process on appeal, and our success rate in having criminal convictions affirmed is greater than 90 percent.”

HendersonEvidence nationally and statewide that wrongful convictions happen can cast doubt on the overall system, according to Fran Watson, attorney and law professor at Indiana University School of Law -- Indianapolis, and others watching these issues. At the Indianapolis law school, the now-freestanding wrongful conviction clinic helps keep an eye on those cases where justice has been wrongly adjudicated and also advocates for prevention. Earlier this year, a 12-person advisory board was also established to help the clinic educate, exonerate, advocate, and communicate about the related issues. The group’s mission is to “elevate practice expertise, knowledge and advocacy to exonerate those who have been wrongfully convicted, and identify the systematic failings that lead us to wrongful convictions.” State and local prosecutors, defense attorneys, private practice lawyers, and criminal justice and forensic science law professors comprise the committee.

“We like to think we have more of a presence and identity, and we can have an impact where it counts,” she said. “It’s just about the worst thing to believe someone in prison is innocent and shouldn’t be there to begin with. And while we can talk about reforms all day long, I couldn’t agree more (that) the lawyers have to get it right at the trial level to have the best chance of prevention.”

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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